Criminal sentencing — conspiracy to make explosive substances — possessing explosive substances — conspiracy to make smoke bombs for use at impending public demonstrations — possessing explosive substances including those for making smoke bombs, thermite mixture and triacetone triperoxide — deterrent sentence required due to ready availability of information, instructions and materials

D2–3 were convicted of conspiracy to make explosive substances (smoke bombs) from “a mixture of nitrate salts, capable of producing a pyrotechnic effect” (‘Count 1’). D1, D4–5 were acquitted of Count 1. D1, D2 and D3 were convicted of possession of various explosive substances contrary to s. 55(1) of the Crimes Ordinance (Cap. 22) (Count 4; Count 2; and Counts 3 and 5 respectively). On 27 May 2015, police conducting surveillance on D1–5, observed them going to a McDonald’s restaurant, returning to D1’s home and D1 taking a cooler box to the ATV studio (‘ATV’) with D4–5. In the early hours of 28 May 2015, police observed D2 join D1 and D4–5 and flashes and smoke from ATV. On 14 June 2015, D2–3 were observed on ATV’s rooftop, mixing and adding substances to bottles and leaving with the cooler box and white smoke was later seen billowing from a window of ATV. On the same day, D2 was found with explosive substances for making a thermite mixture (‘Count 2’); D3 was found with explosive substances for making smoke bombs, a thermite mixture, and a nitrate explosive mixture (‘Count 3’); and D1 was found at and outside his home with substances for making a thermite mixture (‘Count 4’). A McDonald’s cup was retrieved from ATV containing a substance which, when ignited, emitted a large volume of smoke. Police found in D3’s home materials, including acetone, for making smoke bombs and also Triacetone triperoxide (‘TATP’); apparatus for causing explosions, ie a detonating device (‘Count 5’); and a Post-it note and electronic data about explosives, including using acetone to make TATP. The jury rejected D1–3’s claims that they possessed explosive substances for a lawful object, including to make thermite for welding and cooling packs. D1–2 were aged 36 and 31 respectively. D3 was a 24-year-old aeronautical engineering graduate and of clear record.

Held, that:

At a time when information about how to obtain ingredients for making explosives, as well as the instructions themselves, were so readily available on the Internet and when materials for improvised explosives were generally found in commercial and household items, deterrence must play a significant part in the sentencing process (R v. Marcin Kasprzak [2014] 1 Cr App R (S) 20 115 applied). (See paras. 2–3.)

Count 1: D2–3

• D2–3 had conspired together to make explosive substances with a pyrotechnic effect for use at impending public demonstrations. The smoke bombs were rudimentary and designed only to emit a large volume of smoke. D2–3 were each sentenced to 2 years’ imprisonment on Count 1. (See paras. 22, 43.)

Count 4: D1

As regards Count 4, thermite was dangerous as it produced extreme heat and there was no reason for D1 to have possessed it other than for some untoward purpose. The quantities were small but they could cause great harm and damage. There being no mitigating factors, D1 was sentenced to 2 years and 2 months’ imprisonment (R v. Marcin Kasprzak [2014] 1 Cr App R (S) 20 115 considered). (See paras. 42, 48–50.)

Count 2: D2 and overall sentence

The same sentencing considerations, including lack of mitigating factors, in respect of D1 applied to D2 on Count 2 as did a sentence of 2 years and 2 months’ imprisonment. Taking into account totality, 8 months of the 2-year term on Count 1 would run consecutively to the sentence on Count 2, making an overall sentence of 2 years and 10 months’ imprisonment. (See paras. 42, 48–49, 51.)

Counts 3 and 5: D3 and overall sentence

Count 5 reflected a greater culpability on D3’s part because of the materials for making TATP, which could cause loss of life and serious harm to persons and serious damage to property, and also apparatus for detonation. Further, researching explosive substances was one step away from making them and another step away from using them. Given that D3’s research was limited to general inquiries; there was only a small quantity of acetone and no end product; and there were no mitigating factors, D3 was sentenced to 2 years and 6 months’ imprisonment on Count 3 and 3 years and 2 months’ imprisonment on Count 5. Having regard to totality, 8 months of the 2-year term on Count 1 would run consecutively to concurrent terms on Counts 3 and 5, making an overall sentence of 3 years and 10 months’ imprisonment. (See paras. 45–49, 52.)

Hearing

This was a hearing to sentence the first, second and third defendants for possession of explosive substances and the second and third defendants for conspiracy to make explosive substances. The facts are set out in the judgment.